Bray v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bray v Allianz Australia Insurance Limited [2022] NSWPIC 570
Claimant:	Paul Bray
insurer:	Allianz Australia Insurance Limited
Member:	Elizabeth Medland
DATE OF DECISION:	14 October 2022
CATCHWORDS:	MOTOR ACCIDENTS - Dispute as to whether the motor accident was caused mostly by the fault of the injured person pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act2017; claimant riding a motorcycle behind insured vehicle when attempted to overtake insured on the right-hand side; collision occurred when the insured vehicle began a right-hand turn at a T intersection and the claimant was overtaking; Held – that the claimant was mostly at fault with a contributory negligence finding of 65%.
determinations made:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person 3. Effective Date: This determination takes effect on 13 May 2022 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 $600 plus GST.

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a dispute between the parties as to whether the injured person is mostly at fault in the motor accident pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).

Paul Bray (the claimant) is a 28-year-old male who suffered injury in a motor accident on 3 February 2022. The claimant was the rider of a motorcycle in Lindfield, when it was involved in a collision with another vehicle.
The claimant lodged an Application for Personal Injury Benefits (claim form) on
5 February 2022 and Allianz (the insurer) accepted liability for statutory benefits for the first 26 weeks.
By way of notice dated 13 May 2022, the insurer denied liability for ongoing statutory benefits after 26 weeks on the basis that the claimant was wholly or mostly at fault.
The claimant subsequently lodged an application for internal review and in a decision dated 16 June 2022, the insurer affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (the Commission) for assessment of the dispute. The matter has been allocated to me for determination.
I have held one teleconference between the parties on 5 August 2022. Both parties confirmed that the matter was suitable to be assessed on the papers. In addition, it was agreed that the matter was ready for assessment, however, the claimant’s representative requested some time for further material as a matter of caution.
Further submissions were provided by both parties.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislative framework

Section 3.11 of the MAI Act provides as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides as follows:
“(1)    An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2)     A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3)     Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Pursuant to Schedule 2, cl (3)(d) & (e) of the MAI Act, a dispute relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.

Summary of evidence

The claim form complete by the claimant contains the following version of events: “Riding my motorcycle (Rego XXXXX ). Car pulled out suddenly in front of me – knocking me off – I tumbled & was hurt”.
The NSW Police Report before me is dated 3 February 2022 (the date of the accident). The report includes details that the weather was fine at the time of the accident and the sealed roadway was dry. The accident is recorded as occurring at 4.30pm, meaning it was daylight at the time of the accident.
The claimant was riding a Suzuki motor cycle and the insured vehicle is recorded as a white Toyota Kluga. The NSW Police held the claimant to be responsible in the accident.
The report includes the following Crash Summary Details:
“About 4.30pm Thursday 3^rd February 2022. The driver of the motorcycle was travelling north bound on Kenilworth Road Lindfield, The driver of the motor vehicle was about 50 metres ahead of the motorcycle and began to indicate to turn right onto Lindfield Avenue, the driver of the motor vehicle slowed down to about 5 kilometres per hour and began to prepare to turn right, at this time the driver stated she observed the rider of the motorbike begin to overtake the vehicle on the driver’s side of a two lane road, the driver of the motor vehicle maintained the vehicle in its current position in order to allow the motorbike to overtake as to not cause a collision, at this time the rider of the motorbike has hit the driver’s side mirror and lost control of the motorcycle at the intersection of Kenilworth and Lindfield Ave, Lindfield. [sic]”
The insurer commissioned a factual investigation carried out by MJM Corporate Risk Services. Before me is a copy of a transcript of phone interview between the investigator and Constable Robert Sankey of the NSW Police. The interview took place on 9 April 2022. The content is summarised below:
a.     the Constable confirms attending the scene of the accident with his partner, Constable Murphy. He estimates arriving 10-15 minutes after the accident occurred;
b.     upon arrival at the scene the Constable observed the claimant laying on the pavement receiving treatment from paramedics. The insured driver was parked on Kenilworth Road, with the insured vehicle noted to have damage to the offside mirror, the driver’s side door. The insured driver had two children in her vehicle at the time of the accident;
c.     the Constable confirmed some debris was on the roadway from both the motorcycle and the insured vehicle. In addition, skid marks were observed. He surmised the skid mark was from the motorcycle skidding across the road, in a northbound direction at the intersection;
d.     due to the claimant’s injuries, a version of events was not initially provided by the claimant to police. However, a version was provided by the insured driver at the scene. The transcript includes the Constable reading the version as follows:
“I was driving northbound on Lindfield Avenue at about 50km/h. I slowed down as I approached Kenilworth Road because I intended to turn onto it. As I slowed down and started to turn into Kenilworth Road, I heard a loud bang on the driver’s side mirror. I have then seen a bike tip over which was located on the driver’s side of the wheel. I have then pulled over into Kenilworth Road and rendered aid”, and
e.     the insured driver, upon questioning, confirmed that she had her indicator activated and that she slowed down to 5-10km/hr to make the turn. The insured driver gave her opinion that the accident happened because the claimant went to overtake as she has slowed down and in doing so collided with the side of the vehicle.
The Constable advised that the claimant attended North Sydney Police Station to provide his version of events on 10 February 2022. The transcription between the investigator and the Constable providing the version is as follow:
“I was travelling north on Kenilworth Road, cross of Lindfield Avenue, fallen behind a white Toyota Kluger when it suddenly slowed with no indicator. I began to overtake at which point the Kluger turned right into me. As I fell – I began to fall I observed the vehicle’s indicator to be activated” and then he stated right indicator. The durat and caution has been provided. He’s understood. An additional question was “how fast were you travelling prior to the collision and he stated about 45km/ph.” Another question was “how much distance was there between you and the Toyota Kluger prior to the Kluger braking? And he stated about four seconds. Did you utilise your indicator and he stated yes, right indicator. I said is there anything else you wish to tell me and he stated no and that was it.”
The Constable confirms there was a witness to the accident but because they were a significant distance behind a “statement wasn’t necessary”. However, the Constable notes that because the claimant was pursuing legal avenues he would probably follow this up.
The claimant was evidently issued with an infringement notice and the Constable noted the claimant was challenging same and a court mention date was set for
12 May 2022.
A further police summary of the accident is recorded and transcribed as follows:
“About 4.30pm, driver 1 was utilising vehicle 1 and driver 2 was utilising vehicle 2. Both driver 1 and driver 2 were travelling in a northbound direction on Lindfield Avenue, Lindfield. Driver 2 was about 50 metres ahead of driver 1 on Lindfield Avenue. Driver 2 utilised the vehicles right indicator of which was functioning and began to slow down to perform a right turn at the T intersection of Kenilworth Road and Lindfield Avenue, Lindfield. As driver 2 slowed down to about 5km/ph, driver 1 moved to the far right of side of lane 1 of 1 and onto the opposite side of the road of which was separated by broken line markings. Driver 1 accelerated and began to overtake vehicle 2. Driver 2 observed this occurring and maintained vehicle 2 in a straight position in lane 1 of 1 and did not yet begin to perform a right-hand turn. Whilst beginning to overtake vehicle 2, driver 1 impacted vehicle 2’s off side mirror, which is the driver’s die mirror, causing the motorcycle to become unbalanced and resulting in the driver 1 losing control and impacting the pavement. Driver 1 of vehicle 1 slid for about 5-10 metres evidenced by scratch marks on the bitumen and the vehicle’s final placement on the road. Driver 2 completed a right-hand turn onto Kenilworth Road and rendered assistance to driver 1 at which time contacted Triple Zero. Police arrived a short time later and observed ambulance paramedics providing medical assistance to drive 1 who was laying on the bitumen…”
A breath alcohol sample of the insured driver returned a negative result.
A conversation between the investigator and the Constable reveals that the witness saw the accident occur but was not able to provide specifics such as whether the indicator was activated or not. That witness apparently just observed the insured vehicle attempt to turn right and the motorcycle colliding with the vehicle.
An MJM investigator also conducted an interview with the claimant on 9 March 2022. A transcript of the interview is before me. It can be summarised, relevantly, as follows:
a.     the claimant explains that on the day of the accident his intended destination was his home in Turramurra, travelling back from the city;
b.     he has been riding motorcycles since he was 16;
c.     a narrative is provided by the claimant as follows:
“I was only behind one car, only a white car, which was the car that I hit. I don’t even remember if that car was in front of me for a long period of time. I just remember it was in front of me, I was following it. As I was approaching, I think was Kenilworth, it suddenly slowed down, there’s no brake lights on, it just suddenly slowed down; I put my indicator on to overtake; as I overtook and I was alongside of it, the car suddenly, I saw it in the corner of my eye, that the car suddenly put its indicator on and swerved to turn right in front of me, and that’s all I remember. I remember pain and tumbling after that”;
d.     when asked how far he was from the intersection when he began to overtake, the claimant was not able to remember. He did state however: “It’s something that’s lost in my memory, I wouldn’t have overtaken, I can say that. I’m not that suicidal to overtake a car that’s got its indicator on”;
e.     the claimant told investigators that he first noticed the indicator when in line with the back quarter of the vehicle. He goes on to state that the vehicle did not have its brake lights on, but it had slowed down. He states: “it’s obviously used engine braking”;
f.     again, the claimant confirms that when he moved off to overtake the insured vehicle did not have brake lights or an indicator activated. He, however, turned on his indicator to overtake;
g.     as to speed, he was probably travelling at 35 – 40km/hr. He further states:
“It looked like he had decelerated but no brake or anything. There was no warning. No justification for slowing. And I had a clear view ahead and there was nothing in front of it, that car. There was no animal crossing, kids going across the road, no car in front. It’s clear that’s why I indicated to overtake because it was clear in front of that car and clear of traffic approaching me”, and
h.     when asked whether the answers to the questions were true and correct, the claimant answered that they were to the best of his recollection; “which is pretty poor”.
MJM Investigators also conducted an interview with the insured driver, Ms Amanda Hasib on 10 March 2022. The transcript of such interview is before me and can be summarised, relevantly, as follows:
a.     the insured driver was also headed home at the time of the accident. She was travelling with her 12-year-old daughter, who was travelling in the front passenger seat;
b.     the insured vehicle was a rental vehicle due to the insured driver being involved in a motor accident on the Pacific Highway the month prior after her vehicle stopped in a line of stationary vehicles and some vehicles behind her did not stop in time causing a multiple car collision.   She states that she was deemed to be not at fault;
c.     she states that on approach to Kenilworth Road she was travelling at around 40km/hr, however, was slowing and was down to maybe 20km/hr. She states that she did not fully halt because there were no cars coming towards her before her turning;
d.     the insured driver provided a description of the roadway before the scene of the accident, which includes an earlier busy intersection and then a temporary roundabout, with the intersection with Kenilworth Road around 100 – 200 m from the roundabout.   She describes the intersection with the stop sign as busy with multiple cars going in all different directions, as with the roundabout ahead;
e.     the insured driver then provides the following narrative:
“So, I started slowing down and I was slowing down to turn, I wasn’t intending to stop because there was absolutely no cars coming towards me. I went to go turn the car and that’s when the motorcycle slammed into my driver’s side, into my door and my mirror. And, that’s when I stopped the car; I just watched the event unfold where the motorcycle slid out from the driver and then the motorcyclist continued to roll along the tar until he hit the gutter”;
f.     she goes on to confirm that a vehicle travelling from behind also pulled upon on Kenilworth street after her and confirmed he had seen the accident;
g.     the investigators go on to question the claimant as to whether she indicated. Unfortunately, the question posed is a little misleading. The investigator states: “…did you put your, I assume, your right indicator on?” The insured answers that she did.   When asked how far she was before she put on her indicator, her answer was as follows: “…about maybe 100metres. I don’t know, it just always happens automatically these things”, and
h.     she confirms the damage to the car included driver’s door being dented and skid marks across it and the driver’s mirror was smashed and hanging out.
The insured driver filled out an Accident Report Form provided by the insurer on
19 February 2022. The version of provided is as follows:
“I was heading up the hill from Lindfield along Werona Ave & slowing down to turn I put my indicator on. Never completely stopped as there was no oncoming traffic. As I started to turn into Kenilworth Rd a motorbike heading the same direction as me slammed into my driver’s door & side mirror…”
Also before me is the Ambulance Electronic Medical Record. After “case description” is the following:
“c/t 61 yr motorcycle rider laying supine on road. SOT 30 on scene performing manual stabilisation cervical spine. Pt initially confused to place and event. Pt states was travelling approx. 45km/h on motorcycle following car when car braked to turn right. Pt states unable to stop in time and collided with left side motorcycle onto right side of car, then went down with motorcycle onto right hand side. Pt ? loc…”
A report of Dr Gordon Slater, orthopaedic surgeon, dated 26 July 2022 forms part of the claimant’s bundle of documents. It does not assist me in determining the disputes that form part of this application.

Submissions

Each party has provided two sets of submissions. To form a logical sequence, I have summarised same in chronological order below.

Insurer’s submissions dated 26 July 2022

The insurer refers me to regulation 140 and 142 of the Road Rules 2014, however, does not set out the content of same. I note that regulation 140 states that a driver must not overtake a vehicle unless it is safe do so and the driver has a clear view of any approaching traffic. Regulation 142 provides: “(1) a driver must not overtake to the right of a vehicle if the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal”.
The insurer submits that the claimant overtook the insured when it was unsafe to do so and whilst it was in the process of performing a right-hand turn. Further, that she only stopped her vehicle when she observed the overtaking manoeuvre of the claimant.
With reference to the photographic evidence, the insurer submits that the damage profile and markings clearly indicates the insured vehicle had barely, if at all, began the process of turning right.
In addition to the above referred to submissions as to the claimant’s actions, it is also submitted that he was travelling at an excessive speed and that he failed to keep an appropriate distance from the insured vehicle.

It is further submitted that the evidence demonstrates the insured vehicle had slowed down and that instead of slowing down in response, the claimant “appears” to have maintained his speed and attempted to overtake the insured vehicle. It is submitted therefore that the claimant was grossly negligent and that this is primary cause of the collision.
It is submitted that the insured driver has been consistent with reference to her slowing down with an intention to turn right and that her right-hand indicator was activated.
With regard to s 5R of the Civil Liability Act2002 (CL Act), it is submitted that a finding of 80% or greater contributory negligence is open to me.
The insurer goes on to refer to the case of Podrebersek v Australian Iron & Steel Pty Limited 91985) 59 ALJR, specifically that in comparing culpability in cases of contributory negligence, it is the degree of departure from the standard of care of the reasonable man that is the relevant test. A similar reference is made in respect of the case of Salmon v Meacham [2006] NSWCA 89.
Further, the insurer refers to the case of Boral Bricks Pty Ltd v Cosmidis (no 2) [2014] NSWCA 139 (Boral Bricks) that s 5R of the CL Act requires people to take responsibility for their own lives and safety, and as such, the actions of the insured driver does not diminish the claimant’s responsibility for his own safety.
The insurer concludes by submitting that the claimant performed an:
“… inherently dangerous manoeuvre by attempting to overtake the insured vehicle in a lane designated for oncoming traffic, where the prospects of the insured vehicle turning or an oncoming vehicle approaching were increased, and in this respect, the claimant’s recollection of the accident, although limited, indicates that he was unaware why the insured vehicle had slowed down but proceeded to attempt to overtake it irrespective.”

Claimant’s submissions dated 5 August 2022

It is asserted that the insured driver utilised her engine brakes to slow down, complicating the intentions of the insured driver “reinforcing the limitless possibilities”.
It is then submitted that irrespective of whether the insured driver slowed down the turn into Kenilworth Road was “spontaneous” with no indication provided to the claimant. It is submitted that “no inference can be made from the claimant that the insured driver slowed down to make a right turn onto Kenilworth Road”.
It is submitted the issue revolves around whether the insured driver activated her indicator whilst slowing down near the intersection. Accordingly, it was difficult for the claimant to establish the insured driver’s next actions, given that the insured driver used her engine to decelerate, and made no indication to make a right-hand turn.
It is submitted that the insured driver has been inconsistent with her accounts as to her speed. With her asserting she had slowed to 5km/hr (police crash summary) and then later she asserted 20km/hr (interview with MJM). It is then submitted that: “the inconsistencies by the insured driver have flawed the information provided, while simultaneously undermined all allegations”.
It is then submitted that no indication was made by the insured driver and an inference could not be drawn by the claimant that she was stopping or was intending to stop at the intersection. It is asserted that “at its highest, the insured driver slowed down”.
The claimant’s submissions also refer to perceived inconsistencies in the insured driver’s accounts as to the distance she was ahead of the claimant. It is asserted that the insured driver said to investigators that she was 50 m ahead of the claimant, and then later states she was 100 m ahead of the claimant when she utilised her right turn indicator.
The submissions include the argument that:
“in the event the insured driver utilised her right turn indicator 100 metres away, a reasonable person would conclude that a right turn would have been made at any moment, and not particularly near the intersection between Lindfield Avenue and Kenilworth. Thus, the deceleration of the insured driver’s vehicle could have occurred anywhere from the 100-metre starting point.”
It is further pointed out that the claimant maintains that he kept a four second gap between him and the insured driver, which is a safe distance in accordance with the rule 126 of Road Rules 2014 NSW.
Whilst it is a little unclear from paragraph 19 of the submissions, it appears that it is submitted that if the insured driver’s vehicle was positioned such that a reasonable person would conclude a right-hand turn would be made, then the claimant would have been signalled not to overtake as it was unsafe to do so.
It is submitted that the insured driver’s actions were spontaneous.
The submissions refer to inconsistencies of the insured driver as to when she noticed the claimant. With the crash summary from NSW Police stating that she maintained her position. In contrast the insured driver states that she was unaware of the claimant behind her as set out in the transcript of interview with investigators.

Claimant’s submissions dated 19 August 2022

These submissions include an additional argument that the insured driver was inexperienced with the vehicle she was driving as it was a rental vehicle. It is submitted that driving it for one month “reinforces” the inexperience with the vehicle.
It is submitted that the driver “may” have been driving a European vehicle beforehand and therefore this would have confused her as to the position of the indicator and instead she would have mistakenly activated another functionality and not the right-hand indicator.
The next argument made relates to the insured driver’s history provided to investigators that she was involved in a motor vehicle accident the month prior. The submissions refer to the insured driver stating that the accident involved a line of cars. It is then submitted: “this statement is baseless and it is open to the Member to enquire about the previous motor vehicle accident and whether it has any influence on the current matter at hand”.
The submissions then refer to the insured driver stating that she “began to prepare to turn right”. It is submitted that this is vague and does not clarify the “endless possibilities” as to how the insured driver provided her indication. It is submitted that due to such “omission” it was difficult for the claimant to make a determination as to the insured driver’s next course of action.
It is further suggested that “…it is difficult to ascertain precisely what occurred between the insured driver and the claimant, as the insured driver has provided various versions of events which supposedly transpired”.
The submissions include a denial that the claimant was in contravention of regulation 140 and 142 of the Road Rules as argued by the insurer. Finally, it is stated that I should disregard all submission of the insurer, “considering that their credibility has been significantly undermined”.

Insurer’s submissions dated 2 September 2022

In response to the claimant’s submissions as to inexperience with the vehicle and a suggestion she did not activate the indicator, the insurer refers to the substantive analysis contained within its initial submissions. The submissions reiterate that the claimant, by his own admission, observed the insured vehicle’s indicator activated.
It is submitted that the argument that the insured activated the wrong functionality is not a reasonable possibility to conclude on the evidence. Further: “to the contrary, this argument is farfetched, as it is equally possible for the inverse argument to be true”.
Further, the insurer submits that the arguments are conjecture and “predicated on a self-serving narrative which is not supported by the evidence”.
In respect of the claimant’s submissions regarding the previous accident of the insured driver, the insurer submits same are misleading. It is submitted that the ‘history’ to the subject dispute is irrelevant and the argument should not be given any weight. In this regard, it is submitted that the claimant provides no argument as to why the previous accident ought be considered.
In respect of the claimant’s submissions regarding inconsistencies on positioning, the insurer submits that the argument is an attempt to convolute the evidence which overwhelmingly supports the insurer’s position.

Reasons

It is clear from the material before me that the following matters of fact are uncontroversial from the evidence:
a.     both the claimant and the insured were travelling northbound along Kenilworth Road, Lindfield;
b.     Kenilworth Road, is a two-lane road with one lane designated for each direction;
c.     the accident occurred during daylight hours, the road was dry with no rain;
d.     the insured vehicle slowed down prior to the collision;
e.     the claimant began to prepare to overtake the insured vehicle from the right-hand side;
f.     the claimant collided with the insured’s vehicle on the driver’s side, with damage to the driver’s door and front side panel together with the side mirror, and
g.     the insured’s vehicle had its right-hand indicator activated at the time the collision occurred. There is a dispute as to when the indicator was activated. This is discussed further below.
The claimant’s submissions contend that irrespective of whether the insured driver slowed down, the right-hand turn into Lindfield Avenue was ‘spontaneous’. From the evidence, there can be no other reasonable conclusion other than that the insured vehicle slowed down. The insured driver states this is the case, as does the claimant himself. Indeed, this is the reason, on his own evidence, that he began an overtaking manoeuvre.
The claimant’s submissions suggest there is an inconsistency in the insured driver’s evidence as to the position of the insured vehicle at the time of the collision. The submissions refer to the NSW Police crash summary details in the police report as compared to evidence provided to investigators.
On the evidence I make a finding that the insured driver had begun her right-hand turn when the accident occurred. This is consistent with the evidence of the insured driver in both her version provided to NSW Police and her evidence to investigators. It is also consistent with her version of events provided in the Accident Report Form. Lastly, it is consistent with the claimant’s own evidence.
Whilst the crash summary details in the NSW Police report does suggest the insured vehicle had not begun its right-hand turn, I do not place any weight on such narration. It is merely an interpretation of evidence by a third party. It cannot be ascribed to the insured driver.
There is further suggestion in the claimant’s submissions that the insured driver has been inconsistent in her recollection of her speed. There is some inconsistency on the evidence. The insured driver told police she was travelling at around 50km/hr and then slowed to around 5-10km/hr. Whereas, she told investigators that she was travelling at around 40km/hr and slowed to around 20km/hr. Whilst the claimant’s submissions suggest I should dismiss the entirety of the insured driver’s evidence as being unreliable, I do not consider this inconsistency of evidence to translate into an issue of credit of the insured driver such that all her evidence is unreliable. I make a finding that it is instead likely a situation of the insured driver not being entirely sure of her speed and instead has made estimations that has varied over time.
Furthermore, for the purposes of determining fault in this matter I accept that the insured vehicle was travelling at or below the speed limit and slowed to at least half that speed on approach to the intersection with Lindfield Avenue. This conclusion is consistent with both the insured driver’s and the claimant’s evidence.
What is more controversial is when the insured driver activated her indicator. The insured driver herself does not provide a clear account of events in this regard. In answering a somewhat leading question by investigators, the insured driver confirms she activated her right indicator. When asked approximately how far she was from Kenilworth Avenue when she activated the indicator the insured answered: “…about maybe 100 metres. I don’t know, it just always happens automatically these things”.
The claimant denies that the insured driver activated her indicator when she began to slow down and suggests that the indicator was only activated at or close to the time of the collision.
I do accept the claimant’s evidence that he would not have begun the overtaking manoeuvre had he observed the insured vehicle’s right indicator activated.
On that basis, I find that the insured driver failed to activate her indicator at a reasonable distance from the intersection. Instead, I find that it is more likely that she activated the indicator only just before she began her right-hand turn.
In making a determination of fault, and specifically contributory negligence, I am to have regard to s 5R of the CL Act, which provides as follows:
“(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose –
a.The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
b.The matter is to be determined on the basis of what that person knew or ought to have known at the time.”
The claimant’s submissions suggest that it was difficult for him to make a determination as to the insured driver’s next course of action. Whilst I have found that the insured driver did not activate her indicator at a reasonable distance on approach to the intersection, nonetheless the vehicle slowed down on approach to a T intersection. I consider that a reasonable person in the position of the claimant who was following a vehicle that slowed on approach to a T intersection would have had a reasonable expectation that the vehicle was likely to make a right-hand turn in a situation where no apparent hazard explaining the slowing of the vehicle existed.
I therefore reject the submission made on behalf of the claimant that there could be no inference made by the claimant that the insured driver was going to turn right.
I consider a reasonable person in the position of the claimant would have slowed down in response to the slowing of the insured driver. Further, I find that a reasonable person in the position of the claimant would not have attempted to overtake the insured vehicle on the right and into the lane of oncoming traffic. This is particularly so, when in the vicinity of a T intersection which presents a further risk that a vehicle could have been approaching on Lindfield Avenue towards the intersection with an intention to enter Kenilworth Road.
In summary, I consider it an unreasonable action to overtake a slowing vehicle on the right-hand side adjacent to a T intersection. In this regard, noting the insured driver had begun her right-hand turn at the time of the collision, it follows that the claimant was adjacent to the intersection when attempting to overtake the vehicle.
I also reject the submission that the claimant maintained a 4 second gap between his motorcycle and the insured vehicle. This proposition is eroded due to the mere fact that the collision occurred.
I entirely reject the argument mounted on behalf of the claimant that the insured driver was inexperienced with the insured vehicle and therefore likely activated the wrong function on the vehicle. I agree with the insurer’s submissions in this regard. The argument is far-fetched and forms part of a self-serving narrative that is not based on any reliable evidence.
In relation to the further additional argument that suggests that the previous accident that the insured driver was involved in is of significant importance. It is inferred that the insured driver has been perhaps untruthful in her account of the circumstances of that earlier accident. I do not accept such proposition in the absence of any evidence to the contrary. I also reject a suggestion that I could or should make further enquiries in this regard. I do not consider the earlier accident to have any bearing on the particular individual circumstances of the subject accident. I agree with the insurer’s submission that the claimant has failed to provide any credible reason why such prior accident is relevant to the matter before me.
In summary, I therefore find that the claimant failed to take act in a reasonable manner when he overtook a slowing vehicle that was approaching a T intersection.
Whilst I have found that on the balance of probabilities the insured driver did not activate her right-hand indicator at a reasonable distance from the intersection, that does not diminish the claimant’s responsibility to take due care for his own safety (Boral Bricks).
Having regard to the matters set out above, I find that the claimant’s contributory negligence is 65%.
It follows therefore that the motor accident was caused mostly by the fault of the claimant.

Costs

I have found against the claimant. That fact, however, does not preclude me from awarding legal costs in favour of the claimant.
At the teleconference, I requested that the claimant’s representatives provide submissions as to costs in the even that they wished for me to award same. After some initial confusion, submissions were provided dated 26 August 2022.
The submissions make a claim for the maximum costs allowable.
As a regulated miscellaneous claims assessment matter under Schedule 1,
cls (3)(2)(d)&(e) of the Regulation, legal costs may be awarded.
Schedule 1, cl (3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. The current value of a monetary unit is $112.53.
I have found against the claimant, however, am satisfied that there was a reasonable argument to justify the application having been lodged. I note my finding of contributory negligence is not significantly higher than the relevant threshold of “mostly at fault”.
Taking into account the material presented on behalf of the claimant, and the fact that I have found against the claimant, I award legal costs in the amount of $600 plus GST.

Conclusion

For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of ss 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person.
Effective date: this determination takes effect on 13 May 2022.
Legal costs: the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 $600 plus GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
·MAI Act;
·the Regulation, and
·the CL Act.

[2022] NSWPIC 570

14 October 2022